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SUPREME COURT OF THE UNITED STATES
No.
93-6497
FRANK B. McFARLAND, PETITIONER
v.
WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION
on writ of certiorari to the united states court of appeals for the
fifth circuit
[June 30, 1994]
Justice
Thomas , with whom The Chief Justice and
In its attempt to discern Congress' intent
regarding the point at which §848(q)(4)(B) makes counsel available,
the Court spends a good deal of time considering how, as a "practical
matter," the provision of counsel can be made meaningful. See ante,
at 6-7. See also ante, at 1-2 (O'Connor, J., concurring in
judgment in part and dissenting in part). But here, as in any case of
statutory interpretation, our primary guide to Congress' intent should
be the text of the statute. The relevant terms of §848(q)(4)(B) state
that an indigent prisoner shall be entitled to an attorney and "investigative,
expert, or other reasonably necessary services" only "[i]n any post-conviction
proceeding under section 2254 . . . seeking to vacate or set aside a
death sentence." The clear import of the provision is that an indigent
prisoner is not entitled to an attorney or to other services under the
section until a "post conviction proceeding under section 2254"
exists--that is, not until after such a proceeding has been commenced
in district court.
The Court appears to acknowledge that a §2254
proceeding must be initiated before counsel can be appointed under
§848(q)(4)(B), but asserts that "[n]either the federal habeas corpus
statute . . . nor the rules governing habeas corpus proceedings define
a `post conviction proceeding' under §2254 . . . or expressly state
how such a proceeding shall be commenced." Ante, at 5. It is
difficult to imagine, however, how the federal habeas statute could be
more "express" on the matter. As Justice O'Connor explains in detail,
the statute makes clear that a "proceeding" is commenced only with the
filing of an application for a writ of habeas corpus. See ante,
at 4-5 (concurring in judgment in part anddissenting in part).
[n.1]
Section 2254(d), for example, provides that the well known presumption
of correctness of state court findings of fact attaches "[i]n any
proceeding instituted in a Federal court by an application
for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court." 28 U.S.C. § 2254(d) (emphasis added). See
also 28 U.S.C. § 2241(d) (power to grant the writ is not triggered
except by "application for a writ of habeas corpus"). Cf. 28 U.S.C. §
1914 (equating the filing of an "application for a writ of habeas
corpus" with the "instituting" of a "proceeding" for purposes of
setting filing fees).
[n.2]
By providing that death sentenced prisoners may
obtain counsel "[i]n any post-conviction proceeding under section
2254," Congress referred to a well known form of action with
established contours. We should therefore assume that Congress
intended to incorporate into §848(q)(4)(B) the settled understanding
of what constitutes a "proceeding under section 2254" in the habeas
statute. Cf. Miles v. Apex Marine Corp., 498 U.S. 19, 32
(1990). Indeed, the similarity between the languagein §§848(q)(4)(B)
and 2254(d) suggests that Congress used the phrase "[i]n any post-conviction
proceeding under section 2254" in the former provision as a shorthand
form of the language "[i]n any proceeding instituted in a Federal
court by an application for a writ of habeas corpus" contained in the
latter. In short, the terms of §848(q)(4)(B) indicate that Congress
intended that legal assistance be made available under the provision
only after a habeas proceeding has been commenced by the filing of an
application for habeas relief.
The Court rejects this interpretation. Rather than
turning to the habeas statute for guidance in determining when a "proceeding
under section 2254" commences, the Court bases its examination of the
question primarily on what it perceives to be the time at which legal
assistance would be most useful to a death sentenced prisoner. See
ante, at 6. From this analysis, the Court concludes that a " `post
conviction proceeding' within the meaning of §848(q)(4)(B) is
commenced by the filing of a death row defendant's [preapplication]
motion requesting the appointment of counsel." Ante, at 7. The
only textual provision the Court cites in support of that conclusion
is 21 U.S.C. § 848(q)(9), which states that
"Upon a finding in ex parte proceedings that
investigative, expert or other services are reasonably necessary for
the representation of the defendant, whether in connection with
issues relating to guilt or sentence, the court shall authorize the
defendant's attorneys to obtain such services on behalf of the
defendant and shall order the payment of fees and expenses therefore
. . . ."
At bottom, the Court's textual argument amounts to
the following: because investigative, expert, and other services
described in §848(q)(9) "may be critical in the preapplication phase
of a habeas corpus proceeding," ante, at 5-6, and because
§848(q)(9) provides that thoseservices are to be obtained by the
defendant's attorneys, an attorney must be appointed "before the need
for such technical assistance arises"--that is, prior to the filing of
an application for habeas relief. Ante, at 6. Thus, the sole
textual source upon which the Court relies is the statement that "the
defendant's attorneys" are "authorize[d]" to obtain services on the
defendant's behalf.
In my view, such an oblique reference to "the
defendant's attorneys" is a remarkably thin reed upon which to rest
Congress' supposed intention to "establis[h] a right to preapplication
legal assistance for capital defendants in federal habeas corpus
proceedings." Ante, at 6. Indeed, had Congress intended to
establish such a "right," it surely would have done so in
§848(q)(4)(B), which provides for appointment of counsel, rather than
in §848(q)(9), which sets forth the mechanics of how "investigative,
expert or other services" are to be obtained.
Moreover, §848(q)(9) simply does not address the
issue of when "investigative, expert or other services" are to
be made available to a death sentenced prisoner. The Court asserts
that such services "may be critical" in the preapplication period.
Ante, at 5. Yet the issue of when these services are to be
available, like the question of when a prisoner is entitled to counsel,
is expressly addressed not in §848(q)(9), but in §848(q)(4). See
§848(q)(4)(A) (indigent defendant "charged with a [federal] crime
which may be punishable by death" may obtain "representation [and]
investigative, expert, or other reasonably necessary services" both "before
judgment" and "after the entry of a judgment imposing a sentence of
death but before the execution of that judgment"); see also
§848(q)(4)(B) (indigent prisoner "seeking to vacate or set aside [his]
death sentence" may obtain "representation [and] investigative, expert,
or other reasonably necessary services" "[i]n any postconviction
proceeding under section 2254 or 2255"). And for purposes of this
case, §848(q)(4)(B) resolves the issue: such services are to be made
available only after a "post conviction proceeding under 2254" has
been commenced.
As for the policy concerns rehearsed by the Court,
I agree that legal assistance prior to the filing of a federal habeas
petition can be very valuable to a prisoner. See ante, at 6.
That such assistance is valuable, however, does not compel the
conclusion that Congress intended the Federal Government to pay
for it under §848(q). As the Ninth Circuit has aptly observed: "Section
848(q) is a funding statute. It provides for the appointment of
attorneys and the furnishing of investigative services for [federal]
defendants or habeas corpus petitioners seeking to vacate or set aside
a death sentence." Jackson v. Vasquez, 1 F. 3d 885, 888
(1993) (emphasis added). It might well be a wise and generous policy
for the government to provide prisoners appointed counsel prior to the
filing of a habeas petition, but that is not a policy declared by
Congress in the terms of §848(q)(4)(B).
Implicit in the Court's analysis is the assumption
that it would be unthinkable for Congress to grant an entitlement to
appointed counsel, but to have that entitlement attach only upon the
filing of a habeas petition. The Court suggests that its
interpretation is required because it is "the only one that
gives meaning to the statute as a practical matter." Ante, at 6
(emphasis added). Any other interpretation, according to the Court,
would "requir[e] an indigent capital petitioner to proceed without
counsel in order to obtain counsel." Ante, at 7. Yet under the
interpretation of §848(q)(4)(B) I have outlined above, Congress has
not required death sentenced prisoners to proceed without counsel
during the preapplication period; rather, it has merely concluded that
such prisoners would proceed without counsel funded under
§848(q)(4)(B).
Moreover, leaving prisoners without counsel
appointed under §848(q)(4)(B) during the preapplication period would
be fully reasonable. Congress was no doubt aware that alternative
sources of funding for preapplication legal assistance exist for death
sentenced prisoners. Petitioner, for example, is represented by the
Texas Resource Center, which has been "designated . . . a Community
Defender Organization in accordance with 18 U.S.C. § 3006A for the
purpose of providing representation, assistance, information, and
other related services to eligible persons and appointed attorneys in
connection with" federal habeas corpus cases arising from capital
convictions. Brief for Petitioner 4, n. 3 (internal quotation marks
and citation omitted). The Center, which is "funded primarily by a
grant from the Administrative Office of the United States Courts,"
id., at 5, n. 4, became involved in petitioner's case soon after
his conviction was affirmed by the Texas Court of Criminal Appeals.
Thus, although petitioner did not have preapplication assistance of
counsel made available to him under §848(q)(4)(B), he still could
benefit from federally funded legal assistance.
In addition, it seems likely that Congress
expected that the States would also shoulder some of the burden of
providing preapplication legal assistance to indigent death sentenced
prisoners. Cf. Hill v. Lockhart, 992 F. 2d 801, 803 (CA8
1993) ("A state that has elected to impose the death penalty should
provide adequate funding for the procedures it has adopted to properly
implement that penalty").
Defendants under a state imposed
sentence of death must exhaust state remedies by presenting their
claims in state court prior to coming to federal court. See 28 U.S.C.
§ 2254(b). See also Coleman v. Thompson, 501 U.S. 722
(1991). Given this exhaustion requirement, it would have been logical
for Congress, in drafting §848(q)(4)(B), to assume that by the time a
death sentenced prisoner reaches federalcourt, "possible claims and
their factual bases" will already have been "researched and identified."
Ante, at 6. Indeed, if the claims have not been identified and
presented to state courts, a prisoner cannot proceed on federal
habeas. See Coleman, supra, at 731 ("This Court has long
held that a state prisoner's federal habeas petition should be
dismissed if the prisoner has not exhausted available state remedies
as to any of his federal claims"). Thus, it would not have been
unreasonable for Congress to require prisoners to meet the ordinary
requirement for invoking a federal court's habeas jurisdiction--namely,
the filing of an adequate application for habeas corpus relief--prior
to obtaining an attorney under §848(q)(4)(B).
Had the Court ended its analysis with the ruling
that an indigent death sentenced prisoner is entitled to counsel under
§848(q)(4)(B) prior to filing an application for habeas relief,
today's decision would have an impact on federal coffers, but would
not expand the power of the federal courts to interfere with States'
legitimate interests in enforcing the judgments of their criminal
justice systems. The Court, however, does not stop with its decision
on availability of counsel; rather, it goes on to hold that upon a
motion for appointment of counsel, a death sentenced prisoner is also
able to obtain a stay of his execution in order to permit counsel "to
research and present [his] habeas claims." Ante, at 9.
The Court reaches its decision through the
sheerest form of bootstrapping. After reasoning that "a proceeding
under section 2254" for purposes of §848(q)(4)(B) commences with the
filing of a motion for appointment of counsel, the Court imports that
meaning of "proceeding" into 28 U.S.C. § 2251 which provides that a
federal judge "before whom a habeas corpus proceeding is
pending" may "stay any proceeding against the persondetained in
any State court." (emphasis added). The Court thus concludes that
"once a capital defendant invokes his right to appointed counsel, a
federal court also has jurisdiction under §2251 to enter a stay of
execution." Ante, at 8. I agree with the Court that the "language
of [§848(q)(4)(B) and §2251] indicates that the sections refer to the
same proceeding." Ante, at 8. But the method the Court employs
to impart meaning to the term "proceeding" in the two provisions is
simply backwards. Section 848(q)(4)(B) was enacted as part of the Anti
Drug Abuse Act of 1988, 102 Stat. 4393, long after the enactment of
the habeas statute. As noted above, in using the terms "post
conviction proceeding under section 2254" in §848(q)(4)(B), Congress
was referring to a form of action whose contours were well established
under the habeas statute. As a matter of basic statutory construction,
then, we should look to the habeas statute to inform our construction
of §848(q)(4)(B), not vice versa.
The reason the Court pursues a different approach
is clear: There is no basis in the habeas statute for reading "habeas
corpus proceeding" in §2251 to mean an action commenced by the filing
of a motion for appointment of counsel. Thus, to avoid the conclusion
that a "proceeding" in §2251 is commenced by the filing of an
application for habeas relief, the Court is forced to hold that by
enacting §848(q), Congress amended the habeas statute sub silentio.
Cf. ante, at 5 (O'Connor, J., concurring in judgment in part
and dissenting in part).
[n.3] Ineffect, the Court
determines that Congress, in providing death sentenced prisoners with
federally funded counsel in §848(q)(4)(B), intended to expand the
jurisdiction of the federal courts to stay state proceedings under the
habeas statute. Yet §848(q)(4)(B) in no way suggests a connection
between the availability of counsel and the stay power; indeed, the
provision does not even mention the term "stay." A proper
interpretation of the provisions at issue here, however, avoids the
dubious assumption that Congress intended to effect such an amendment
of the habeas statute by implication. Correctly interpreted, both
§§848(q)(4)(B) and 2251 refer to a "proceeding" that begins with the
filing of an application for habeas relief, after which a federal
court has jurisdiction to enter a stay and to appoint counsel.
In reaching its expansive interpretation of §2251,
the Court ignores the fact that the habeas statute provides federal
courts with exceptional powers. Federal habeas review "disturbs the
State's significant interest in repose for concluded litigation,
denies society the right to punish some admitted offenders, and
intrudes on State sovereignty to a degree matched by few exercises of
federal judicial authority." Duckworth v. Eagan, 492
U.S. 195, 210 (1989) (O'Connor, J., concurring) (internal quotation
marks and citation omitted). See also ante, at 5 (O'Connor, J.,
concurring in judgment in part and dissenting in part). We should not
lightly assume that Congress intended to expand federal courts' habeas
power; this is particularly true regarding their power directly to
interfere with state proceedings through granting stays.
Moreover, as Justice O'Connor observes, in
expanding the federal courts' power to grant stays, the Court's
decision "conflicts with the sound principle underlying our precedents
that federal habeas review exists only to review errors of
constitutional dimension." Ante, at 3 (concurring in judgment
in part and dissenting in part). Under the Court's interpretation of
§2251, a prisoner may obtain a stay of execution without presenting a
single claim to a federal court. Indeed, under the Court's reading of
the statute, a federal district court determining whether to enter a
stay will no longer have to evaluate whether a prisoner has presented
a potentially meritorious constitutional claim. Rather, the court's
task will be to determine whether a "capital defendant" who comes to
federal court shortly before his scheduled execution has been "dilatory"
in pursuing his "right to counsel." Ante, at 9. If he has not
been "dilatory," the district court presumably must enter a stay to
preserve his "right to counsel" and his "right for that counsel
meaningfully to research and present [his] habeas claims." Ibid.
In my view, simply by providing for the appointment of counsel in
habeas cases, Congress did not intend to achieve such an extraordinary
result.
*****
Because petitioner had not filed an application
for habeas relief prior to filing his motion for stay of execution and
for appointment of counsel, the courts below correctly determined that
they lacked jurisdiction to consider his motion. I respectfully
dissent.
*****
Notes
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